Episode 126: Bernice B. Donald
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Trailblazing Sixth Circuit Court of Appeals Judge Bernice B. Donald has had a multifaceted judicial career. She sits down with host MC Sungaila to discuss her time on the federal appellate bench, and, before that, as a federal district judge and bankruptcy judge. She shares her work in the area of implicit bias, mentoring and encouraging women of color to consider the bench, and provides some insights into effective brief-writing and oral argument.
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About Bernice B. Donald:
Hon. Bernice Donald is a Senior Judge on the United States Court of Appeals for the Sixth Circuit. She was nominated to that position by President Barack Obama and was confirmed by a vote in the Senate on September 6, 2011. Prior to that, Judge Donald sat on the U.S. District Court for the Western District of Tennessee. She was appointed to the district court by President William Jefferson Clinton in December 1995. She was sworn into office in January 1996. She previously served as Judge of U.S. Bankruptcy Court for the Western District of Tennessee, becoming the first African American woman in the history of the United States to serve as a bankruptcy judge.
In 1982, she was elected to the General Sessions Criminal Court, where she became the first African American woman to serve as a judge in the history of the State of Tennessee.
She received her law degree from the University of Memphis School of Law where she has served as an adjunct faculty member. She also serves as faculty for the Federal Judicial Center and the National Judicial College. In 1996, Chief Justice Rehnquist appointed Judge Donald to the Judicial Conference Advisory Committee on Bankruptcy Rules where she served for six years. She is extremely active in the American, Tennessee, and Memphis Bar Associations, serving in vital leadership roles in key committees.
Judge Donald has served as faculty for numerous international programs, including Romania, Turkey, Brazil, and Russia. Judge Donald lectured in various Republics of the former Soviet Union, including Kazakhstan, Kyrgystan, Kazan, Moscow, and Kransnador. In 2003, Judge Donald led a People to People delegation to Johannesburg, and Capetown, South Africa. In June 2003, Judge Donald traveled to Zimbabwe to monitor the trial of a judge accused of judicial misconduct.
Judge Donald has served as President of the National Association of Women Judges and the Association of Women Attorneys. She has chaired the Memphis Diversity Institute and the Commission on Opportunities for Minorities in the legal profession. She currently works with Leadership Memphis to provide leadership training for Memphis Housing Authority residents. And in June 2003, Judge Donald co-founded 4-Life, and skills training and enrichment program for students 6 - 15 designed to teach children to become positive productive citizens. Judge Donald is a member of ZETA PHI BETA Sorority.
Judge Donald has been the recipient of over 100 awards for professional, civic, and community activities, including the Distinguished Alumni Award from the University of Memphis, the Martin Luther King Community Service Award, and the Benjamin Hooks Award presented in 2002 by the Memphis Bar Foundation.
Judge Donald is married to W. L. Donald, and is the daughter of Mrs. Willie Bell Bowie and the deceased Perry Bowie. Judge Donald is a member of Greater Middle Baptist Church, pastored by Reverend Robert Mason.
In this episode, I am pleased to welcome Judge Bernice Donald, a senior judge on the US Court of Appeals for the Sixth Circuit. Welcome, Judge.
Thank you so much. It is such a pleasure to be here with you and be a part of the show.
Thank you for participating. I know of your fine leadership in so many ways in the American Bar Association and your many trailblazing roles on the bench. There are so many means of serving on the bench from the trial court and the state court to bankruptcy court and the Court of Appeals. You have a very interesting trajectory and experience as a judge. It’s very wide-ranging and unique.
All of those positions have been interesting and they have allowed me an opportunity to serve and let people in different quadrants see the face of justice. As lawyers, we oftentimes focus on the appellate courts and judges who are on appellate courts. Certainly, people focus on the Supreme Court but most people's perspective about justice is shaped by much lower courts.
The first court on which I served was a limited jurisdiction, a county court and I called it the Court of First Resort. It is for people dealing with the ordinary issues of life who come before the court. It was a high-volume court. It's so important that we present at that level a face of justice that exemplifies fairness, respect and dignity. Each dispute comes before that court with importance, dignity and respect. People who are in that situation expect a judge who is going to hear them, treat them with dignity and respect and give them a fair outcome based on the law and the facts of that case.
Even though we may be in high-volume courts, a person's perspective about the system is going to be shaped there. Although that was an elected position and I only stayed there for six years, it was some of the most important services that I was able to render because it did give people a perspective on justice. When I was elected, I pledged that I would always treat people with dignity and respect. I believe that no matter what the situation, as a justice system, we must accord every individual a measure of dignity and respect. I truly believe that no one should have to forfeit their humanity or dignity for the cause of justice. I have tried to live my life and exemplify in my work those deeply held principles.
There's so much in that in terms of it. It's so important for the continued vitality of the justice system itself to have people comfortable with the system and the treatment that they receive. We'd say smaller rounds and courts, that's maybe the only time that someone has contact with the justice system that will color their entire view of it. That sense of treating people with humanity as human beings are so important to both their experience and continued faith in the system.
Their respect for the courts and the work of the courts is integral to our system of justice. All of us are stakeholders and guardians in that system. We conduct ourselves in a way that promotes those ideals that we stand for and that the system extols.
That's such a beautiful description of it. I was wondering how you came to the law, to begin with. What inspired you to go to law school and then eventually become a judge?
I grew up in the ‘60s. The ‘60s was an era where we all believed that we could right whatever wrong, make the world a better place and had an obligation to lend ourselves to the fight for freedom, justice and equality. As a child, I believed deeply in what I read about the law and justice. In my existence, I noticed that what I read about in the books did not comport with my lived experience on the ground.
I grew up in the south in deep segregation. I grew up in a time when the lived experiences of my parents and my siblings were almost second-class citizens. The law said that all of us should be equal and the law regards us as equal. I thought, "What can I do to improve my lot and make what I read about reality in my life?" As a young person, I didn't see that.
I didn't know how to do it but I knew that education and college had to be a big step so I did that. While in college, I served as a volunteer for the juvenile justice system. There, I saw what I believe was disparate treatment for the poor and racial minorities in young people. I decided that I wanted to go to law school so that I could defend children and make sure that they had a voice and an advocate. I went off and enrolled in law school with the goal of representing children. I must tell you, in the interest of full disclosure, I have never represented a child.
This is not an unusual story. A lot of that can be a mission about why people decide to go into law but may not tangibly be what you end up doing.
I have worked with children in many other fora. That got me into law school. Once you get to law school and get that Law degree, there is this notion of, “I need to find a job in my field.” I did some work in legal services and as a public defender. Both of those, for me, represent God's work. I was providing a voice for people whom I perceived otherwise had no voice.
I met people in crisis, large and small and I was able to help them navigate their situation. Sometimes to a resolution that they were pleased with and sometimes to a resolution that did not afford them what they wanted. In all of that, I always try to make sure that people understood the law. I remember when I was working for legal services, I had the opportunity to work for a program called Street Law. This was a volunteer program.
We went into marginalized communities to help people understand their rights and responsibilities. This was a community that still had people riding through the community selling aluminum siding, getting lands on people's property and selling them these insurance policies that they would pay for probably 3 or 4 times over. The maximum value might be $5,000 and sometimes less than that.
I realize that there are certain communities vulnerable to predatory practices because of a lack of knowledge and economics. The work that we did through Street Law was work that I thought was so essential. It was almost like a ministry and I enjoyed that work. Some people say that even as a judge I have continued to oftentimes come across as a social advocate.
I do believe that the problems that courts deal with are complex. I've come to believe that the law is the law. The law doesn't always deliver justice but we have to recognize that these issues are complex and try to look for broader solutions and oftentimes, the narrow conclusion that we have to come to. Sometimes that is exploring with people their path to this place, helping them envision solutions beyond that and helping them to understand not only their rights but their responsibility as a citizen in a democratic society. I have enjoyed that part of the work.
The law is the law, and it doesn't always deliver justice.
I'll give you one example. When I say that the law doesn't always deliver justice, there is a law on the federal side. It's a law called 18 U.S.C. Section 922(g). It's a wonderfully envisioned law by Congress but I don't know that those who envisioned this law thought about the broad ambit of cases that will be swept under there. I'll give you an example that I like to talk about.
That law says a felon may not possess a weapon, a gun or ammunition. The law is well-intentioned because there are classes of people who should not possess weapons. Other parts of the statute cover other groups. That means that a person who's a felon may not possess an individual bullet. As a federal judge, I had a case where a man who was paranoid schizophrenic and bipolar got off of his meds and was living on the streets.
Somehow in his time using drugs and alcohol and picking up things, he came in possession of a single 45-caliber bullet. On the sixth day of his journey, he realized that he was at risk because he had not had this medicine. He called the police to say, "Help." He told them his name, where he was and his condition. He said, "Come and get me. I want to go to the hospital. I'm afraid if I don't get to the hospital, I could end up hurting someone."
Good police officers came to get him. They said, when they got there, as good police officers, "We're going to take you to the hospital but first we have to check that little bag to make sure there's nothing in there that's going to hurt you, us or the people at the hospital." No doubt about it. Good police practice. They dumped the bag on the hood of the squad car and in there, there was this one 45-caliber bullet. It was not a weapon, just a bullet but that comes in the ambit of the statute.
They took him to the hospital. They ultimately took the bullet to the federal prosecutors. The federal prosecutors filed an indictment. Ten months after this encounter, there was a knock on his door and he was arrested. That case is not that complicated to prove. You got to prove that the person knowingly possessed a bullet, that the bullet crossed state lines and that the person was a convicted felon. All of which the government was able to easily prove.
On the mandatory minimum, that amounts to a minimum of fifteen years in federal prison without parole. Did Congress envision that drastic of an outcome when they pass that law? Probably not but the law is on the books. This man, like hundreds of other citizens who come in that category, end up being swept in. This man was convicted easily. That's why I say that the law doesn't always deliver justice and we have to recognize that. We have to do a good job of educating people to try to make sure that they are aware and that they can conform to their conduct so that it doesn't come within the ambit of those horrendous laws.
When people talk about law versus justice not always converging, it helps to have a tangible example of what that can mean. The other thing that was resonating with me early on in your discussion was the question of the flip side of that. There can be laws on the books. Laws can say certain things that everyone is treated equally and all that. How is it implemented and what is the reality for people under those constitutions or laws?
That's something that came home to me when I was doing international work. You've also done some international work. There are a lot of countries with beautiful-sounding constitutions and laws. When you see, is that the truth? Is the law implemented? You would be shocked to see that there was this statement.
You're like, "I don't see that in the justice system or any of this being implemented. It's aspirational but I don't see it implemented yet." That's where the importance of your work internationally comes into play too. You can help other judges in other countries and the lawyers understand, "Here's how you can make it tangible. These are ways to make the rule of law come to life."
I have enjoyed the international work very much as we have worked with countries around the globe. Those of us in the US are so fortunate that we have grown up with a written and established constitution that has been tested. We have cases and precedents that we can look at. We can see where it has ennobled us as people. We can see areas where we did not perhaps live up to that written document but we are still working and have a very strong constitution.
People can see it applied to their lives day in and day out. There's an active and ongoing debate about various things, whether it's the Second Amendment, the Right to Free Speech or whatever it is. We know, see and feel that in our lives day in and day out. The first time I had to go to a country to work with them as they were drafting and asking for comments or trying to strengthen laws and trying to deal with enforcement, it was a unique and novel experience.
We have always had our constitution. We have a rich body of law that has interpreted that constitution. I've also come to terms with looking at barriers to justice. I do a good bit of work in the area of diversity, equity, inclusion and particularly on educating about implicit bias. What I find is that when I stand to talk about implicit bias, people immediately say, "You're going to call somebody a racist. You're going to say somebody is prejudiced. You're going to call them a homophobe or something. You're going to put a label on them."
I explained, "No, that's not what I'm going to do." All of us as humans have these biases that we may not be aware of. I like to tell people oftentimes that it's about the association in our mind because our brain processes eleven million bits of information per second. There's no way we can consciously do that. I go through an exercise and if you will permit me, I'm going to do this.
I talk about this in associations. I will tell people. "I'm going to quickly call off several vocations. I want you to think about what comes to your mind when you hear these things." I'll go through it and say, "Doctor, judge, lawyer, secretary, nurse, NFL football player, prostitute, teacher, professor, drug dealer." I may go through a couple of others. I always put the CEO in there.
I go through them very quickly and then I'll ask people, "When I said secretary, how many of you thought of a male?" Very few people think of males. We associate that occupation with females. "When I say doctor, how many of you thought about a female?" There'll be a few hands but most of us when we think about doctors, we think of males.
It's interesting in that category of teacher and professor. When I say teacher, people think about females. When I say professor, they think of males. It's interesting. I don't ever ask people what came to their mind when I said prostitute, escort or call girl because there is a difference in the images. What that tells us is that over our lives in processing the lived and learned experiences, we have developed certain associations.
We get these from media, reading, friends and family and all manner of places. They reside on our mental hard drives and our brain activates them in situations. That can sometimes be a barrier to justice. It can sometimes determine to whom we give a break or view less favorably. It can shape whom we think is qualified to do a particular thing or not.
It can oftentimes determine whom we give a chance to even prove themselves because we make real determinations or assessments about people in the first seven seconds that we meet them. We would know nothing about them. If we caught one of those negative things, we may never get beyond that initial reaction. I love doing that work with people and probing into that because those things can impact the quality of justice in a person's life.
When you said between teacher and professor, I was thinking the same thing. I was like, "I wonder if that's different." People have different views generally with regard to those two different titles. It's an important point that dovetails in my mind a little bit with the story you were telling about law versus justice in a particular case.
I was thinking when you were talking about that too, I was like, "I wonder if the prosecutor would have taken a different view as to whether they would've pursued the charges, to begin with, if there had been different circumstances or they viewed the circumstances differently." There are so many things that go into that but it's important to go through that and be aware of that. Everyone has those in different ways and points based on their experience. Many people couldn’t imagine women as lawyers, much fewer judges. With each person in that role, you're changing people's views of what's possible too.
I've told you long stories but I have to share one more. My first judgeship was an elected one.
I wanted to ask you about that because that's one of the interesting things that I've learned through the show. Each state has different ways of selecting its judges. Running for election as opposed to appointment is so vastly different. I was so curious if your first position was an elected one.
That was my first position. I made the decision to run for judge because of what I perceived as a judge treating an individual in court very poorly. In that judge's treatment of that defendant, there were all kinds of stereotypes that were rampant in the proceeding. I thought, "That's not right." That was one of those, to my mind, denial of dignity and respect. I thought, "I can do better than that."
There was an opportunity for me to run for a judgeship. I have to be clear and tell you that I didn't run against that judge but there was an open seat and I ran. That's how I got there. It was an ordeal and I didn't have much money because I was very young. I didn't have a big political support group. I wasn't able to raise a lot of money. I had to get a loan on my 1971 Volkswagen Beetle.
You can imagine in 1982, there was not much of a loan value on that but I have a large family and my family worked tirelessly for me. In the final analysis, I won. One of the things I did in the cause of my campaign was to go and do a couple of radio ads. There was a station where I used to do this. I made an appointment because this was something I could afford and I went there. I had an appointment at 4:00. I got there at about 3:45 and the two young women at the desk asked me to have a seat in the waiting room. There was a partial partition separating the waiting room from them.
I was waiting because, at that time, I didn't have a cell phone. I don't know whether the cell phone have been invented then. It got to be 4:00 and then it got to be about 4:10. I heard one of the young ladies say, "We only have one more person. That's Bernice Donald. If she's not here in the next ten minutes, we're going to leave." I got up and presented myself at the desk and I said, "Excuse me. I'm Bernice Donald and I've been here since 3:45."
One of the young women looked up at me and said, "You are Bernice Donald?" I said, "Yes." She said to me, "You don't look like a judge." I said, "What's a judge supposed to look like?" Without missing a beat, she said, "I don't know but you don't look like one." That was not a malicious statement. It was simply a reflection and an acknowledgment that in my community, there had never been an African-American female judge.
I was young. I was 30 years old. At that time, I was skinny. There were two African-American judges, older males. There were two female judges, both white. She was saying, "The image of a judge in my mind, you don't fit that." I said to the woman before we started, "If there's something you want to do and you don't fit the picture, repaint the picture so that you're in it." That's what we have to do.
For me, becoming the first African-American female judge in the history of Tennessee was so important, even though it was a limited jurisdiction court. For women of color, we can do this. We have many African-American women. I remember and am friends with the 2nd, 3rd, 4th and 5th. We've stopped counting because there are many. I became the first African-American female bankruptcy judge in the history of the United States in 1988. The second was in Los Angeles, California. The third was in Kansas.
Once people look at them and they see, "I can identify with that. I can do this." That is why it is so important to break those barriers because until you get that 1st, you don't get the 2nd, 3rd, 4th or 5th. Hopefully, all of us, when we're in those positions, are working to make sure there is a 2nd, 3rd or 4th and so on. It is so important to give back. I tell every young woman, “If you are not prepared to do the work in that position, then don't go there. Your performance may very well determine whether somebody else gets an opportunity to do it in the near term.”
If you are not prepared to do a job, don't do it. Your performance may determine whether or not somebody else gets an opportunity.
Paying it forward and making sure that you're not the last. Your trailblazing is so important. That's been something that others have echoed on the show. They said, "Yes, we feel that that's part of our responsibility to make sure we aren't the last." On the other hand, in being the first, you have to have the courage and vision to do something.
When you don't see anyone else in that position before you, you have to say, "This is something I can contribute to." Is there continue to be areas where there will still be a few firsts and not waiting to see somebody else? It's nice when there's somebody else who can pave the way and pull you forward but sometimes you still have to have that courage to go and go after things where you think you can serve without anyone before you.
That is important. Even though I'm talking about being the first woman of color, our mentors and our sponsors will often not look like us. A White female, Nancy Sorak was an inspiration for me. She was the one in quiet moments who told me, "You can do this." She told me what to do while I was on the bench. When I found myself being attacked or in difficult situations, she told me about personal coping skills so that I would not allow myself to get out of my zone of respect.
On the appellate court, it was a White male out of Nashville, Tennessee, who called me and said, "Some of us have been talking and we think that you would be good for this vacancy." He didn't just say that. Once I said yes, he worked so hard knocking on doors, knocking on people and mentioning my name in places that I wasn't even there.
I was listening to a minister and he talked about the message of hidden figures. For all of us, there are people in our lives whom we may not even know, who will mention our names, qualifications and integrity in rooms and spaces that we don't even know. With the reputation that we have and the work that we've done, they have seen it.
They may never come to you and tell you, "I recommended you." They do that because of the respect they have for you. It's not always going to be someone of your gender or race. It's going to be people from all over the place. That is why all of us must constantly be aware that we don't get where we are by ourselves. All of us are standing on other shoulders. It's up to us to keep ourselves strong and prepared so that others can come and stand on our shoulders.
I have been so fortunate in every phase of my career, whether it was the initial court, bankruptcy court, the US District Court or the appellate court. That is why I get calls from people all across the country wanting to know about being a bankruptcy judge and pursuing a position on the district court. I will take the time to talk and encourage. I will take the time to do mock interviews if that's what they want because that is important.
When you were saying that, especially about the people who say things about you, you may never know who that was who helped you, who was an angel in the room. You may never know that that happened but you know that it had to have because of where you've gone to. The only way, especially if you can't identify who helped you, you can't thank them, is to pay it forward by doing that for others.
That's usually what people want you to do. They don't care about personal acknowledgment. They want you to do that for somebody else.
I remember there was a smaller group of women lawyers in LA. They are superior court judges, other women judges and then members of women lawyers who would work together. If somebody was applying to the bench, we'd do exactly what you said. We moot them through the interview, prepare and do a lot of hard work to help people get the best opportunity they could for that judicial position. The express agreement of everyone participating in that was, "All we want you to do is to do the same thing for others. Keep paying it forward."
It's a good thing to have. It feels good to help others, be generous and give your hard-earned wisdom in reaching those positions. It feels good to be able to help. You have such wide-ranging experiences that I could see a lot of people wondering about all those different positions. I have a question. From the state court to the bankruptcy court, how did that come about? That's a pretty specialized area that not everyone would even think about applying for.
That was a 180-degree turn for me. I knew that I didn't want to be a criminal court judge all of my life. Even though I was elected to an 8-year term, I thought that 5 years was about as long as I could stay on the criminal court and not become defined by that role. If we're not careful, people will put us in these little areas. They all of a sudden start to see you as being synonymous with that role. You can be limited because people see you as only being capable of that thing.
That's interesting because all of us are growing as people. We have a lot of possibilities that we could do in a lot of different areas.
In my community on the court that I was elected, I am probably still the only judge who was elected to that court, whoever moved beyond that court. I thought, "People will see me as only being capable of being a limited jurisdiction judge." I started to look around and there was an opening on the bankruptcy court internal audit. I decided I would apply.
I went, first of all, to the chief judge of the bankruptcy court and said, "This is what I want to do. What are you thinking?" If he had told me, "Bernice, I think this is a bad idea. Don't do it," I would've walked away and not given it a second thought. I wouldn't have done it. He thought about it and he was a foremost bankruptcy scholar nationally. He said, "Bernice, I think this is a good idea. If you do it, I will help you."
I applied. This was in year five of my tenure. In the final three, didn't get it. Another judge on the court passed. Circuit judges appoint bankruptcy judges. A circuit wrote me and said, "Since you applied for the last position, you will automatically be considered for this one. You tell us not to consider you." I left my name in and I got the position.
What they told me was, when they did their investigation of me, I had a reputation for being a hard worker. I had a good academic record. I suppose they reasoned that I could learn the subject matter. The bankruptcy judge, David Kennedy, had already agreed to help me. I went on the court. I will tell you that that is my favorite court of all of the courts in which I have served.
It was a smaller court. It's a very collegial court. The subject matter is amazingly interesting. It is a court of equity and you have that court of equity framed by a bankruptcy code. Everyone in that court, no matter where they were located, was helpful. I have to tell you another story. You see I have lots of stories. I had been active in the National Association of Women Judges.
The bankruptcy court feels like a smaller collegial court, but it's a court of equity.
There was a state court judge in New York. Her name was Sybil Hart Kooper. She's now deceased. She was a friend of mine. She learned that I was going to apply for this position. After I got it, she said, "Bernice, I'm so happy for you. I know nothing about bankruptcy but I know someone who does." One Friday night before I was sworn in, I was at home stirring on the stove when my phone rang.
This voice comes across the phone. It sounds like a mafioso character who said, "Let me speak to Bernice Donald." I said, "This is she." He said, "I hear you're going to become a bankruptcy judge." I said, "Yes." He said, "Sybil Hart Kooper told me to call to take care of you. My name is Conrad Duberstein. I'm in the Eastern District of New York and you take my telephone number. If you need anything, you call me." I've never had to call him but I have always had angels watching over me. Some of them have been placed there by specific people and some of them have seen me and embraced me. I have had a wonderfully warm and rich career. It's been amazing.
It's interesting what you said about that being, in many ways, your favorite judicial position. In that and a lot of the things, you've talked about going to law school initially with this sense of advocating for children but then being looked different from the outside. There's an interior continuity to all of the different things that you've done.
That aspect of the bankruptcy court, when you described it would be very appealing to you. You can bridge that law and justice gap by being part of the role of the bankruptcy court generally. There is a great lesson in that in terms of not being too narrow-minded, not too focused on, "I want to do this kind of law or thing." Being open to seeing the corollaries and the parallels across a whole range of different subject areas of the law, even positions on the bench.
That's one of the things I was hoping with the show to make clear that when you say you're going to be a judge or you'd like to be a judge, that looks so different, depending on which court you're in, what subject matter you're in, state or federal, how you get there, even in the worst appointment versus elected and then what that job is like. Some things are better fits for different kinds of personalities or you have different skills that are better for different judicial positions. That's not something we talk about a lot so that was one of my hopes too that people could get a sense. Which one would be the best service for them?
I want to quickly say to the audience that as you observed, there are many different types of judges. There's the administrative judiciary, state and federal. If you start at a certain place, it doesn't mean that you have to end there. Look at Justice Jackson, who was confirmed who was on a trial court and a federal appellate court and then on the Supreme Court.
There are magistrate judges who are appointed by the district courts for eight-year terms. There are bankruptcy judges who are appointed by the Circuit court for ten-year terms. There are district court judges who are appointed by the president. Federal Appellate Court judges are appointed by the president. The Supreme Court justices are appointed.
There are lots of opportunities to provide judicial service and then there are the state courts. Many of them have merit selection panels. There's the administrative judiciary and the agencies will select those individuals as agencies do on the federal level. If one wants to be a judge, first of all, look at what you like but also be open to things that don't necessarily think of right off.
If you take a judgeship in one place, doesn't mean that that's where you will end. Do a good job wherever you are. Recognize that while a judge is a leader and has a defined role, it's also a public service position. We are servants, first and foremost, of the law but that impacts the people who are appearing before us. I encourage people. I loved it. I've been a judge for many years. I have treasured every moment of it.
Your career exemplifies what you were saying in terms of you starting somewhere and ending up in a different position. Each of those positions on the bench is different, which allows you to grow and serve in different ways. From the bankruptcy court to the district court and the Court of Appeals, was there something that made you think this was time to try applying to the district court the same way that you had the idea about the bankruptcy court and leaving the position you were in on the trial court or was it different?
It was different. I had thought I would retire as a bankruptcy judge. I enjoyed it that much. I was very comfortable. I loved it. I loved the work and my colleagues. One day, in June of 1995, I was attending a conference in Asheville, North Carolina. I received a call from a congressman. He said to me, "I have recommended someone for a position on the district court. That person is going to withdraw their name in three days and I want to know if I could recommend you." I said, "Of course." He said, "I want you to come to DC." I went there. It was unexpected. That's why I say that we don't always know who is looking at us and who has knowledge of the nature and quality of our work. This congressman identified me. We were not friends.
Had you spoken to this man? No.
I had spoken to him. Not about a judgeship though because Memphis, Tennessee is a small community. If you're elected, you're going to know everybody who has been elected. They're going to know of you. I don't know that he had reason to know of my work as a bankruptcy judge. He knew that I'd been federally appointed. This was going to be his one opportunity to recommend a judicial nominee to the president.
He called me. Interestingly enough, he had already recommended somebody else and that person withdrew. He wanted to be able to immediately recommend me. Like the guy who called me to ask me to seek the appellate court, my congressman went all out, paving the way and making certain that there were no hiccups along the way.
To show you how much work he did, he had me fly to Washington immediately and start processing the paperwork. He recommended me to President Clinton in late July of '95. President Clinton formally nominated me on December 7 of '95. I had a hearing on December 19 of 95 and the senate confirmed me on December 22. It was fifteen days from my formal nomination to my confirmation. I appeared for my senate confirmation hearing before a Republican-led Senate Orrin Hatch presided and he was wonderful.
That goes in the category of being ready for opportunities in terms of your work and ability to deliver on them. Not always knowing where they're going to come from and certainly not deliberately campaigning for it. The Court of Appeals, was it the same way?
Not at all. I was sitting at my desk in November of 2009. I got a call from the lawyer in Nashville saying, "I'm not sure you know there's going to be a vacancy on the Court of Appeals from Tennessee in 2010. Some of us have been talking and we think that you'd be good for that." Long story short, it took him a little while to convince me because I was happy where I was.
In March 2010, I finally was convinced to seek the position. When I started to seek the position, I only know one speed and that was 115%. I met with somebody on March 1, another woman who encouraged me to go for it. I did a lot of things by accessing my ABA network and following a lot of helpful suggestions starting March 1.
I was on my way to Cambodia and was flying through Detroit. When my plane touched down in Detroit, I did what we all do, immediately turn my phone on and check my messages. I had a call from a 202 number and I called the number. They said, "This is somebody from the White House Council's office. We want to let you know that the president is submitting your name for vetting." That was in July 2010. July is a good month for me.
Through the American Bar Association, I have met so many influential people, people who are connected and willing to help. My ABA network helped me. For your audience, I want to make certain I'm clear. When I say the ABA has a standing committee on the judiciary, vet people. This is separate and apart from that because that committee remains separate and apart. They don't get involved with people who are trying to get a nomination. They only become involved once the person has been nominated and then they vet them for certain areas.
We all have groups of people whom we interact with. People who know us and our work ethic, integrity and intellect. I access that network and those hidden figures speaking my name in places and writing letters. Those things fell on fertile ground when the president nominated me in 2010. The term of Congress ran out so I had to be renominated in January 2011 but then I finally got confirmed in September 2011. The circuit court was much more protracted but it worked out.
Versus your first experience with the district court. Each appointment and election to judicial service is different depending on what's going on. You have only so much control over that along for the ride. Tell me about your time on the circuit then. As an appellate court judge, what have you enjoyed about that? What tips might you have for advocates in terms of oral argument or brief writing that can make your job easier as a judge?
I have been on the appellate court for many years. It has been enjoyable. I stayed the junior judge on the court for almost six years and then I got new colleagues. Had I been active, I would've been the 7th judge from the bottom of our 16-member court. I’m right in the middle. I have enjoyed, first of all, the collegiality of my colleagues. We are a highly collegial court.
I say that because there was a time in the history of our court when we did not enjoy that reputation. The last several chief judges that we've had, along with the judges themselves, have made a point to work on that. Even though we may be different and we may come with different presidential appointments, we respect each other. We believe genuinely that every judge comes to the issues on the court from a principal position and a position of trying to get it right.
Working in an environment like that is important. Some of the issues that we have dealt with have been highly controversial and some are more routine. Every case is important and unique from the perspective of those who bring that case to the court. We try to look at those issues. When the court sits and makes a decision, there's going to be somebody who's going to be elated and somebody who's not going to be.
We try to do where the law leads us. We work collaboratively on these cases. We respect differences. That has been one of the most enjoyable parts of the job. One of the parts that have been less enjoyable for me is the absence of regular interchange with the lawyers. I make up for that with my involvement in organizations.
It can be very isolating because when we come here to Cincinnati where I am to do the work, we sit, come back and have some social events. Those are abbreviated. I've enjoyed being able to work from one perspective to be able to advance the law. I've enjoyed the leadership opportunities that I've had on the court. Our court has implemented a project that we called IDEA, Inclusion, Diversity, Equity and Accessibility.
We have regular monthly events where the whole court family, not just the judges and law clerks but all of the support staff, might be reading a book and discussing it or a presentation from some person. We are on our way to trying to make certain that we have an atmosphere that promotes inclusivity and openness and that respects and values difference. It's a great place to work.
One of the things that happen when you're appointed to a collegial court or a decision-making court is you have zero say about who your colleagues are and how that works out. They're all appointed like you are and the way you go together. It's encouraging to hear that there's that true collegiality among members of the court. What about any tips for brief writing or oral argument?
For oral argument, it's imperative to be prepared, know your brief backwards and forwards and try and anticipate questions. All of our arguments are recorded. They're on the computer. Once you figure out your panel, it might be important to go back and listen to an argument from at least the presiding judge on that panel. On our court, we have some judges who are tough questioners and others who tend to listen more. We have a court that is very active in terms of questions and engagement.
One tip is even if you had an associate write and prepare the brief, recognize that when you step into court to argue this case, you own the brief. We don't want to hear the fact that you didn't write it. You need to know it. You probably need to have it mooted before you come there with other members of your firm or if you're in a legal clinic, some other people in the clinic so that you can anticipate that. Be prepared to answer the questions. If there is some question that you don't have the ready answer for, be honest and admit that upfront. Ask if you may supplement your argument with a case or maybe a supplemental argument.
In terms of brief writing, be mindful of the limitations with respect to the length of the brief and use your words carefully. In many of the briefs that I've read, there is a lot of redundancy. You have to be a word miser with these briefs because the word limits are the word limits. If you're going to go over that, you'd have to get permission.
When brief writing, be mindful of the limitations with respect to the length of the brief.
The judge is going to be pretty stingy when it comes to giving permission to go over because we have a lot of things to read. Before you get ready to go to court to argue your case, as the last-minute thing, go on the computer and see if there has been any change in the law that you're relying on. Maybe there's a case that's come out. Hopefully, if it’s going to make your principal moot, you are already going to know about that but there may be little something.
Remember, at least in our circuit, the judges have a computer up on the bench. If you cite some case or principal that was not in your brief, they're going to be able to check it out right then and there. Whatever you do, do not lose credibility by intentionally misstating something. Once you lose credibility with the court, it is difficult to get it back. Know the court's rules, abide by them, be prompt, submit your thing on time and be respectful.
Keep in mind, the appellate court is not the same as a trial court. You don't need to come in and try to give a jury argument. The court doesn't want to hear that. You may get a chance to say one more sentence after you say, "Mr. Justice, may it please the court." You may get that but sometimes you don't even get that much out there on you the minute you stand up. Keep in mind that questions are your friend asking what they want to know. Sometimes they're trying to influence a colleague through questions to you.
Two things jumped out in what you said which is true on the Ninth Circuit out here in California too. The first thing was to be very mindful during an argument that the members of the court have that immediate access to, whether it's the iPad or computer. They’re checking the record or their law clerks are checking the record. When you say something, they're site-checking you in real-time so you have to be conscious of that.
It's different when it's destroyed in real-time in that way. If you were saying something opposite on page whatever of the record counsel, that impacts the rest of the argument, as opposed to if you're going back afterwards and looking at it. The timing of that changes things and having that at your fingertips.
The second thing is how long it takes to prepare for an argument. I teach in clinics. I've taught in clinics for over ten years. Every time, the students will say, "This semester, we're doing the reply brief and then argument. We have 4 1/2 months. What else will we do?" I'm like, "Prepare for an argument. This is your first argument. This is many months of preparation and we're going to go through all this, have several moots and all of this stuff. This is a real case with a real person who's impacted by the outcome. We're treating this seriously."
"You might as well treat this amazing experience that you're allowed to have as a student to argue before the Federal Court of Appeals. With the level of seriousness that's required of that, you're going to get the most out of this experience if you're prepared." They're always surprised. Yes. It did take three months to prepare for the argument.
There is nothing more impressive than a well-prepared and confident oralist. I didn't say arrogant but confident. That preparation is what allows you to stand up with confidence. It's important to moot this and have tough questions before you get there because that also is going to increase your level of confidence. I encourage students and lawyers to do that.
There is nothing more impressive than a well-prepared and confident oralist.
I had that experience working with a team that was presenting a case for argument in the Federal Court of Appeals. We had multiple new courts. We looked at every angle, various types of questions and how they might come out and prepare her. She said, "I felt not overly confident but confident when I went up there. There wasn't a set of questions or an area of questioning that I hadn't thought about in some way before." That's what you want.
That's a well-prepared advocate.
Exactly, but it takes so much time to get there. Every time it's always a painful process, I always think, "I like the argument part. I wish I could do that without all these painful six weeks of preparation." You don't get that without the prep. It all goes together. You have to do it all. There’s one point that I learned that I thought was interesting too. Judge Millett on the DC Circuit was an amazing Supreme Court advocate before joining the bench.
I asked her something about, "Is there something that you didn't realize as an appellate advocate that you wish you had now that you're on the bench? Did you see something differently?" She said something that struck me which was, "For an advocate, oral argument is the end. Preparing for that and doing all of that, that's your last opportunity to have a conversation with the court. To the court, that isn't the end."
"It's just part of the process because then, we're going to a conference and have this back and forth. It's an important part of the process but it isn't the end for us." Thinking about that when you're the advocate, I might have thought about my presentation a little differently if I'd thought to recognize that. We know that other things happened but we tangibly think about them.
We know it at the level of the head.
Exactly. I was like, "That's right, thinking about the stream of decision-making, where you're falling in that and all the work that's still to be done afterward." In my mind, knowing that and recognizing that in the way Judge Millett does, I always say, "Never wave argument if you have the opportunity," but I would say, "Double down on that as an advocate. You want to be part of that process as deeply and with as many opportunities in that stream of decision-making as you can. You want to have that."
I think of it as looking ahead. You always want to look at the feel ahead of game time. That's what I think of either going to court and having a sense of what it feels like 1 day or 2 before or now that you have the arguments online. Especially the presiding judge of your panel, how does that person operate? What can you expect? Being prepared for that is so important. Judge Donald, thank you so much for participating in this. There were so many great stories that you shared and such an amazing judicial career at so many different levels. I appreciate you sharing your experiences in all of those positions.
Thank you for having me. It's been important to be a part of this wonderful work that you're doing.
I'm so glad. Yours is such an important voice to add to the collection of stories. I appreciate you being part of it. Usually, I'll end with a few lightning-round questions. The first one is, which talent would you most like to have but don't?
I'd love to be able to sing.
We need those who listen and those who sing. We need both. Those who appreciate. I went to our annual Messiah presentation and there was a sing-along component. That's one of those where you're like, "I'm joyful. Not sure about other things but it's fun to participate and be part of the group." Who are your favorite writers?
I like Toni Morrison. I wouldn't say writers but I love biographies because I find them so inspirational. I also love legal fiction.
Some people say, "No, I want to keep that separate." Others enjoy it. I can think of the Illinois Appellate Court, Justice David Ellis who writes legal thrillers. He started before he was on the bench and he continues to do so. Some pretty popular ones. It’s very interesting. He and I were on a panel at one of those appellate judges’ conferences talking about legal writing and creativity. I thought he was an interesting fellow. Who is your hero in real life?
My hero in real life, even though she's deceased, was my mother. My mother had a very tough life but she was the essence of grace and ethics. I always say that law school taught me to be a lawyer but my mother taught me to be a judge. She didn't have an opportunity to do the things that I’d done. I doubt that she ever made as much as $20,000 a year in her life.
She was a master of stretching $1, caring for her family, assuming responsibility and giving us a strong value system. Even though she's gone on, I still live by the principles that she taught us growing up. Some of those principles were to give a full day's work for a full day's pay. If you don't, that's stealing. She taught us to respect all people and she said, "Don't shy away from people who are different. Don't judge them harsher because to them, I'm different."
She taught us to always be principals and stand up straight. She said, "If you stand up straight, nobody could ever ride your back." She also taught us to respect all people and ourselves and several other things. Those values that she taught us are still part of me. They form the basis of my relationships and friendships and the work that I do. She's still my hero.
Always stand up straight because if you stand up straight, nobody could ever ride your back.
She’s so influential in your approach to judging, life and people also.
I always mention my mother first. My father was another great hero of mine. He made me believe that I could do anything without a qualification. He saw in me someone who could do anything and he always had great expectations for me. When I became a lawyer, he was so proud of me. Less so when I decided to become a judge. It's because he'd been in a bad accident when he was at work and the lawyers got him a settlement, which at that station in life was a pretty substantial settlement.
His friends, when they were in jeopardy, it was the lawyers who were there. He was active in trying to help people in our community to get the right to vote. Some lawyers came to our community to work on those. In his mind, the lawyers were the heroes. The only thing he knew about the judges was they were the people who put his friends in jail.
When I went over to that side, he was a little disappointed. After I started doing the work, he was very proud of me. He managed to be there for the first three judgeships that I held. My mother was there for all four. They were proud of the work I did. I have always tried to carry myself in a manner that would bring them deserved respect.
Sometimes our parents don't always say they're proud of us but we hear from other people that they're proud of our work. They don't want to make us too full of ourselves or anything like that to keep us grounded. It's so important what you said about your father. I've had that experience too with my father. He was like, "Whatever you want to do." Especially for girls, that's important because you don't place any limits on yourself as a result of that. If somebody doesn't see that early on, whatever you want to do career-wise or accomplish, it's so helpful moving forward.
He gave me that can-do. I think about the questions you were asking me before about bankruptcy, even though there was a vastly different world on that ground that he had given me that you can do anything. Probably I wasn't conscious of it at that time but it probably sprang from the notion that I can do anything.
Given the choice of anyone in the world, who would you invite to a dinner party?
They could be living or dead?
Yes.
I would invite three people. I would invite Nelson Mandela. He was so wise. He was the model of a leader. He had the fortitude, insight and ability to do biblically what we're supposed to do to turn the other cheek. He went through years and years of suffering and came out without bitterness. That is remarkable to be able to do that. I would want to talk to him about his life, extract those lessons and be in his presence. To be in his presence is to be in the presence of greatness.
I would want to have dinner with Thurgood Marshall to thank him for the work he did in the South and for people like me to help tear down the segregated walls, especially in education to help with desegregating public institutions. I had an opportunity during his life to meet him at an ABA meeting to say thank you but I didn't get a chance to hear the stories. He was a wonderful storyteller. I would want to listen to some of his stories about the work that he engaged in, the travels and how he dealt with his life being on the line in so many instances trying to advocate for the rule of law and the embodiment of the constitution.
I would want to be in the presence of and have dinner with Oprah. She has done so much. She's from Tennessee. I would want to know about how she took her beginnings and innate talent and created an empire where she can do so much. I've heard people talk about what she's done in the US and certain states. How she's influenced things and the lives of people like President Obama and the senator in Pennsylvania and what she does in the lives of ordinary people. I would want to know about her philanthropy and the inner compass that causes her to do what she does. That would be a lively dinner party.
That would be a lively dinner party, for sure, with an eclectic, interesting group. Amazing accomplishments on their own but sometimes, the combination would even be more interesting to see what might come out of that.
I have met Thurgood Marshall and Nelson Mandela but I have never met Oprah.
It's still possible. Putting that out there into the universe, maybe that could happen. Maybe someone will listen and introduce you. Last question. What is your motto, if you have one?
My motto is, "Each day is a gift from God. What we do with and in that day is our gift to him." To me, paying it forward, helping and being the person that inspires something in someone else, hopefully, each of our days is filled with that. I'll leave with the little poem that I like to share with people. It goes like this. "Lost yesterday. Some places will bring sunrise and sunset, 2 golden hours, each set with 60 diamond-studded minutes. No reward is offered, for they are gone forever."
"Whatever we do this day, when tomorrow comes, will forever be locked in the annals of history. Nothing we can do will change that. We cannot re-enter that day and fix it. What we do today, we want to be good, not evil. For whatever we do today, we want it to be a success and not a failure that we may never regret the great price that we paid for this day."
That is a beautiful ending. I appreciate your sharing that.
Thank you.
Thank you so much for joining. I appreciate it.
It’s my pleasure. Have a wonderful day.
Thank you. You as well.